Houston Federal Court’s Judicial Order Cloaks the Written Truth and Assaults Ailing Elder Widow

ORDER

Plaintiff filed this case in state court on December 21, 2023. ECF 1-4 at 2.

Defendant PHH Mortgage Corporation (PHH) removed the case and the Court denied Plaintiff’s Motion to Remand.

ECF 18.

This case is the most recent of many cases that Plaintiff has filed over the past several years to thwart foreclosure proceedings on real property located in Fort Bend, County, Texas.1 [Incorrect County]

Id. at 2.

On August 5, 2024, PHH filed a Motion for Summary Judgment (ECF 27) and Motion to Declare Plaintiff Joanna Burke as a Vexatious Litigant (ECF 28).

Plaintiff’s Responses were due on August 26, 2024.

On August 27, 2024, Plaintiff filed a Verified Motion for an Extension of Time seeking a 60-day extension of time to respond due to “ongoing and debilitating symptoms as a result of [Hurricane] Beryl,”

1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. ECF 26.

which caused Plaintiff to lose power from July 7, 2024 to July 16, 2024.

ECF 29.

PHH is opposed to a 60-day extension of time due to Plaintiff’s extensive litigation history and pattern of delay but does not oppose a short extension of time.

ECF 30.

It is therefore

ORDERED that Plaintiff’s Motion for an Extension of Time (ECF 29) is GRANTED IN PART AND DENIED IN PART.

It is further

ORDERED that Plaintiff’s Responses to the pending Motion for Summary Judgment (ECF 27) and Motion to Declare Plaintiff a Vexatious Litigant (ECF 28) are due on or before October 7, 2024.

Replies will be due 14 days after Responses are filed.

Signed on September 18, 2024, at Houston, Texas.

Christina A. Bryan
United States Magistrate Judge

REPLY TO OPPOSED RESPONSE BY DEFENDANT’S TO PLAINTIFF’S VERIFIED MOTION FOR AN EXTENSION OF TIME

TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE AND ALL INTERESTED PARTIES:

Hollyfrontier Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2178 (2021)

“Likewise, the Federal Rules of Civil Procedure prescribe all sorts of rules about “[w]hen an act may or must be done within a specified time” in trial court proceedings. Fed. Rule Civ. Proc. 6(b)(1).

And for almost all rules prescribing a deadline, a district court may “extend the time” even “after the time has expired.” Ibid. ; cf. Fed. Rule Civ. Proc. 6(b)(2).

More than a few lawyers and clients have taken advantage of “extensions” of just these sorts.”

TIMELINESS & NON-DISCLOSURE:

On August 5, 2024, Defendants submitted a Motion for Summary Judgment and a Motion to Declare Plaintiff Vexatious.

On August 18, 2024, Plaintiff prepared her Verified Motion for an Extension of Time with Proposed Order.

It was posted the same day via USPS Priority mail with a scheduled delivery date of August 21, 2024 per online tracking and email by USPS. On August 19, 2024 at 1.26 pm Plaintiff emailed a copy of the motion and proposed order to opposing counsel.

Plaintiff provided more than sufficient time for USPS to deliver the legal documents and relied upon their delivery time assurances.

Even if it didn’t arrive on the 21st or 22nd, there was still plenty of time before the pending deadline of August 26, 2024.

For reasons only USPS can explain, the tracking went from “on-time” to “arriving late”.

It would be delivered at 7.58am on August 27, 2024.

See; Exhibit: “USPS Priority Mail Proof of Posting and Delivery Timeline”.

Additionally, there’s the 3-day postal rule for pro se litigants who are not provided ECF filing permissions, and which would make the motion timely.

That stated, Defendants’ could have expedited their objections as they were in possession of the motion.

Rather, counsel for Defendants’ deceptively failed to mention the fact they were on notice since August 18, 2024, and had received a physical copy of the motion and proposed order by lunchtime on Monday, August 19, 2024.

In these circumstances, the court should apply Hollyfrontier Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2178 (2021).

OFFICERS OF THE COURT & CANDOR:

Whilst on the subject of notifications and lawyer’s creed (candor), unlike their August 5, 2024 motions, Plaintiff did not receive a copy of Defendant’s response by email when it was docketed on Sep. 3, 2024 (Doc. 30).

Joanna Burke found the response by checking the online docket at around 5.30 pm on Sep. 4, 2024.

Given the delays in priority postal mail, their regular mail is unlikely to arrive within seven days (LR 7.4 (E))

This does not appear to be an oversight, considering counsel for Defendants’ purposeful failure to disclose they’ve been in possession of Plaintiff’s motion since August 19, 2024, as stated herein.

See Exhibit: “Emails to Hopkins Law, PLLC as Defendants’ Counsel from Joanna Burke”.

ATTORNEYS ARE NOT MEDICAL EXPERTS:

The last time Joanna Burke was in this District Court before Judge Alfred H. Bennett, (Burke v. Ocwen Loan Servicing, LLC (4:21-cv-02591) District Court, S.D. Texas) and where the same counsel was ever-present, she could be found beside her husband one day to frantically calling 911, and at his death-bed the next day.

It was during this emergency she would receive Judge Bennett’s dispositive Order (doc. 50, Aug. 29, 2022): while she was at her husband’s side as he lay dying in a hospital bed, her soulmate and only love for over six decades.

Ominously, Joanna Burke finds herself “center court” during another medical emergency at a critical time, and where her own recovery is proving to be worryingly slow and punishing.

Plaintiff finds it nauseating that Defendants would oppose a medical continuance for an 85-year old widow, forcing this reply.

As well as providing local data in her original motion (e.g. “Seniors died at higher rates after Beryl…), heatstroke does not discriminate based on age or fitness level; it can be a deadly condition or leave a person in critical condition regardless of their health status.,

see; Class v. Towson Univ., 806 F.3d 236, 238-39 (4th Cir. 2015)

(“On August 12, 2013, as the temperature in Baltimore reached 91°F, Gavin Class, a Towson University student, collapsed with exertional heatstroke while practicing as a member of the Towson University football team.

He was transported to the Shock Trauma Unit at the University of Maryland Medical Center in Baltimore, where he remained in a coma for nine days and almost died.

He suffered multi-organ failure, requiring a liver transplant and numerous additional surgeries.”)

and which provides further medical statistics and data by qualified experts, namely medical doctors and physicians, not Texas attorneys.

In summary, the assessments provided by the defense are not only outside the scope of the legal profession and banking industry but are also demonstrably flawed.

EMERGENCY FOR DEFENDANTS’ COUNSEL:

Notably, on May 6, 2024, Mark Hopkins and Shelley Hopkins filed an Unopposed Verified Motion for Continuance due to a family emergency, “requiring counsel’s immediate presence in Dallas, Texas for the immediate future”.

The order would be granted same day it was docketed, and the trial would be reset sua sponte to Dec. 12, 2024 – over seven (7) months later, without objection.

See; 202177947 – CONLEY, BYRONICA vs. ALL ABOUT HOMES LLC (Court 152, Harris County District Court).

This is a disputed foreclosure case which will exceed 3 years in litigation before reaching trial.

HURRICANE BERYL CONTINUANCES:

Only a few days ago, on August 30, 2024, an unopposed motion for an extension of time was made; “Hurricane Beryl has affected numerous residents of Houston and Fort Bend Counties including the undersigned counsel for Defendants, Minh-Tam “Tammy” Tran (or “Tran”).

Ms. Tran fell ill in the aftermath of the storm and has been working diligently to catch-up following her illness and the extensive period without power and internet services following the storm.

In furtherance of these efforts, Defendants respectfully request a 14 day extension of the deadline to respond to Plaintiff’s Motion to Strike.”.

This was the second Hurricane Beryl continuance in this case (doc. 26);

Travelers Casualty and Surety Company of America v. PRCHOU, LLC (4:24-cv-00796), District Court, S.D. Texas, Judge Kenneth Hoyt presiding.

The first extension (doc. 18) submitted July 12, 2024 would be granted (doc. 23) on Jul. 26, 2024.

MAGISTRATE JUDGE RESETTING DEADLINES:

A review of the docket in Plaintiff’s removed case shows the court referring the case to the Magistrate Judge.

With that in mind, in a recent case before Judge Bennett’s court, on June 11, 2024, the Magistrate Judge effectively restarted briefing, terminating all current motions and “reset” all the deadlines;

“To streamline the process and ensure all parties have a full and fair opportunity to raise issues and evidence on summary judgment. it is therefore ORDERED that all pending motions for summary judgment (Dkt. 52, 101, 103, 104) are hereby TERMINATED in favor of allowing Defendants to file new motions for summary judgment. The new briefing must proceed in accordance with the following procedures and deadlines.”;

Gordon v. Hyatt Corporation (4:22-cv-00092) District Court, S.D. Texas.

The case commenced on Jan. 10, 2022, 2 years and 8 months ago.

CONSECUTIVE BRIEFING:

Based on Joanna Burke’s age, state of health and the extreme nature of relief sought in the two dispositive motions; a motion for summary judgment which is 24 pages long, and the vexatious litigant motion, which is 18 pages, Plaintiff asks for no more than the court regularly allows for extensions of time given the medical circumstances:

30 days for each motion to run consecutively, with one deadline date for delivery in 60-days’ time after the summer ends on September 22, 2024, so Plaintiff may address the complex legal filings as a non-prisoner, pro se.

Chenari v. U.S. Citizenship & Immigration Serv., CIVIL TJS-23-1649, at *9 (S.D. Tex. Mar. 1, 2024)

(“the Court will grant Defendants an extension of 60 days to respond to the non-resident Plaintiffs’ claims and 30 days to respond to the Plaintiffs’ claims that will remain in this Court.”).

NO PREJUDICE:

In a recent foreclosure proceeding with PHH as the objecting Defendant, the court ruled;

“Defendant points out that Plaintiff did not file a timely response to its Motion for Summary Judgment. Plaintiff s response was filed on September 29,2023, more than 21 days after Defendant’s Motion was filed on August 31,2023.

See Local Rule LR7.3.

Plaintiff did not seek leave to file her response after the deadline, as required by this Court’s procedures.

Nonetheless, since no ruling was issued at that time, the Court will consider Plaintiff s response”

– Falconer v. PHH Mortg. Corp., Civil Action 4:22-CV-03151, at *5 n.2 (S.D. Tex. Feb. 27, 2024).

Pursuant to Texas Civil Practice and Remedies Code Section 132.001, I hereby provide my unsworn declaration….

CONCLUSION

In light of the above, the Plaintiff’s verified motion for an extension of time should be GRANTED. A proposed order is provided.

RESPECTFULLY submitted this 5h day of September, 2024.